Salloum & Salloum
[2022] FedCFamC2F 250
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Salloum & Salloum [2022] FedCFamC2F 250
File number(s): DGC 4093 of 2019 Judgment of: JUDGE BURCHARDT Date of judgment: 15 March 2022 Catchwords: FAMILY LAW – Consideration pursuant to s 45A of the Family Law Act of father’s application for parenting orders – where father completely denies all allegations of family violence – where children refusing to spend time with father even on supervised basis – where elder child clearly perceiving himself to have been assaulted by father despite father’s denials – where police evidence supporting mother’s allegations of violence – where family therapy sought by father never likely to assist – orders made as sought by mother and Independent Children’s Lawyer. Legislation: Family Law Act 1975 (Cth)
Federal Court of Australia Act 1976 (Cth)
Cases cited: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited & others [2008] FCAFC 60
Spencer & The Commonwealth of Australia [2010] HCA 28
Division: Division 2 Family Law Number of paragraphs: 55 Date of last submission/s: 3 March 2022 Date of hearing: 3 March 2022 Place: Dandenong Advocate for the Applicant: Ms Opie Solicitor for the Applicant: Hutchinson Legal Advocate for the Respondent: Ms Wilkinson Solicitor for the Respondent: Wilkinson And Associates Advocate for the Independent Children's Lawyer: Ms Hamilton-Green Solicitor for the Independent Children's Lawyer: Creative Family Law Solutions ORDERS
DGC 4093 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SALLOUM
Applicant
AND: MS SALLOUM
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
15 MARCH 2022
THE COURT ORDERS THAT:
1.The Mother has sole parental responsibility for the children X born in 2008 and Y born in 2015.
2.The children live with their Mother.
3.The Mother and Father communicate all important information regarding the children directly between them by the communication platform AppClose, or an equivalent, in a respectful and child focused manner.
4.The Mother notify the Father through AppClose (or equivalent) as soon as practical, of any significant medical illness or injury involving the children.
5.The Father may provide the children with cards & or gifts to a postal address provided by the Mother through AppClose (or equivalent).
6.The Mother assess such correspondence and gifts as to whether they are child focused and age appropriate, and if they are not, then the Mother to be at liberty to return such items to him.
7.The mother be authorised and permitted to apply for Australian passports for X born in 2008 and Y born in 2015 (“the children”) without the consent of the Respondent Father.
8.The children be permitted to depart the Commonwealth of Australia.
9.The Mother and Father will be restrained from:
(a)Discussing any parenting matters in the presence or hearing of the children;
(b)Exposing the children to any negative comment regarding the other parent or any member of their family;
(c)Exposing the children to any argument or conflict between them;
(d)Exposing the children to anyone adversely affected by alcohol or illicit substances or an abuse of prescription medication 10. That the ICL be dismissed.
10.That all extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Salloum & Salloum has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY
This is a parenting matter concerned with the best interests of two children, X (sometimes referred to as X) born in 2008 and Y born in 2015. The matter was set down for hearing to consider whether the father had reasonable prospects of successfully prosecuting his case within the meaning of section 45A of the Family Law Act 1975 (Cth), primarily, but not wholly, because of disturbing matters in the reports from C Family Services.
The father’s position expressed in draft orders submitted to the court was that the children live with the mother but Y spend time with him two hours each fortnight professionally supervised at his expense. Relevantly for these purposes, he also sought that the parties and the children attend upon a suitably qualified family therapist for the purpose of reportable family therapy. The mother’s position, fully supported by the Independent Children’s Lawyer, is that the father’s application should be dismissed because he has no reasonable prospect of success.
For the reasons that follow, I have formed the regrettable conclusion that the father has no reasonable prospects of success and his application will therefore be dismissed.
THE LAW
Section 45A relevantly provides that:
No reasonable prospect of successfully defending proceedings
(1) The court may make a decree for one party against another in relation to the whole or any part of proceedings if:
(a) the first party is prosecuting the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings.
No reasonable prospect of successfully prosecuting proceedings
(2) The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:
(a) the first party is defending the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
When there is no reasonable prospect of success
(3) For the purposes of this section, a defence or proceedings or part of proceedings need not be:
(a) hopeless; or
(b) bound to fail;
to have no reasonable prospect of success.
In Spencer & The Commonwealth of Australia [2010] HCA 28, the High Court dealt with the meaning of section 31A of the Federal Court of Australia Act 1976 (Cth), which is in identical terms to section 45A above. At [24], French CJ and Gummow J said:
The exercise of powers to summarily terminate proceedings must always be attended with caution.
Their Honours continued at [25]:
Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue.
The plurality of Hayne, Crennan, Kiefel and Bell JJ said at [51]-[52]:
First, the central idea about which the provisions pivot is "no reasonable prospect" (emphasis added). The choice of the word "reasonable" is important. If s 31A is to be seen as deriving from r 24.2 of the Civil Procedure Rules 1998 of England and Wales, its provisions underwent an important change in the course of their translation from that jurisdiction to this. The English rule speaks of "no real prospect"; s 31A speaks of "no reasonable prospect". The two phrases convey very different meanings.
Second, effect must be given to the negative admonition in sub‑s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is "hopeless" or "bound to fail". It will be necessary to examine further the notion of "no reasonable prospect". But before undertaking that task, it is important to begin by recognising that the combined effect of sub‑ss (2) and (3) is that the enquiry required in this case is whether there is a "reasonable" prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.
The plurality went on at [58]-[60] to say:
How then should the expression "no reasonable prospect" be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is "no reasonable prospect". The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like "no reasonable prospect" is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.
Rather, full weight must be given to the expression as a whole.
In the only other authority to which I would refer is Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited & others [2008] FCAFC 60. I refer to the judgments of Rares and Gordon JJ (as her Honour then was) in general without reciting them. One matter to which I wish to make direct reference is in a judgment of Gordon J at [132] where her Honour said (citation of authority omitted):
I now come to a final, sixth principle, which is that in determining whether a real issue of fact exists such as to preclude summary judgment, the court must draw all reasonable inferences - but only reasonable inferences - in favour of the non-moving party. I emphasise “reasonable” because it is on this point that the lowering of the bar effected by s 31A becomes clear. By distinguishing between “hopeless” cases and those without reasonable prospects for success, the statute makes clear that the court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference.
THE PARTIES’ AFFIDAVITS
The father’s first affidavit filed with his application on 2 October 2020 details the children, the parties, and their relationship. They entered into an arranged marriage in 2005 and separated on 23 August 2019. The affidavit detailed intervention orders taken out in 2015, 2018 and 2019, the latter of which has been extended until 2021. Relevantly for these purposes, the father deposed at paragraph 38 to have having had an excellent relationship with the children, whom he had not, however, seen for some time.
This affidavit supported an application for week-about time and equal shared parental responsibility.
The mother’s response likewise sought equal shared parental responsibility, but time for the father to be as determined by the court. The affidavit in support details an incident where X was slapped by the father in 2015 and numerous allegations of assaults by the husband upon the mother. She deposed to Y having severe language disorder, and annexed as annexure C what on their face are clear admissions of misconduct by the father.
The father’s next affidavit filed 9 March 2021 relevantly asserts that both parties were slapping each other in 2015. He denied the mother’s earlier allegations that he used alcohol to excess (paragraph 22).
In his next affidavit filed 20 January 2022, the father sought family therapy, referring to his having undertaken the tasks the court had ordered for him, including CDT testing, a parenting orders program and engagement with his psychologist, Mr B.
The mother’s final affidavit filed 24 February 2022 responds (as indeed had the husband’s from time to time) to the allegations made and notes the effects that would be likely upon X if any time was ordered for Y to spend time with the father without X being present.
It will readily be apparent that this is a broad brush approach to the parties’ affidavit material. That is because there is a sufficiency of independent material to which the court, in my view, can pay perhaps slightly greater regard.
THE 11F REPORT DATED 26 FEBRUARY 2021
The report commenced by traversing the allegations in the matter (paragraphs 1-3). Report noted the father’s denial of any violence towards the mother or the children, asserting that the mother had fabricated an allegation that he had hit X (paragraph 4).
At paragraph 5, relevantly, the report noted:
Mr Salloum admitted sending Ms Salloum the email contained her affidavit admitting past wrongdoings. Mr Salloum stated at interview that he did this intentionally to “make her soft...make her care for me…but it did not work…it used to work but it did not work this time”. It was highly concerning that Mr Salloum appeared to be admitting perpetrating emotional abuse and intentionally manipulating Ms Salloum to appease him and agree to his request.
The report noted the mother’s allegations of frequent assaults (paragraph 6) and stalking (at paragraph 7). At paragraph 8, the report noted:
Ms Salloum remained fearful of Mr Salloum at the interview and was visibly upset and crying when discussing her experiences.
At paragraph 9-10, the report noted:
Given that Mr Salloum denied any wrongdoing or problematic behaviours, it was doubted whether Mr Salloum had any capacity for behaviour change.
Mr Salloum did not accept abuse or violence had occurred and therefore, he saw no reason to explore behaviour change. It was concerning that Mr Salloum redirected blame to Ms Salloum during the interview.
At paragraph 11, the report noted:
Mr Salloum stated that he his only concern for the children in their mother’s care, was his belief that Ms Salloum was “brainwashing” the children and filling the children with “hate for their father”. He claimed this behaviour occurred while the parents were together and had continued post separation. However, it was queried how Mr Salloum could make this claim, given he had not had contact with Ms Salloum of the children since August 2018.
The report noted the mother’s assertion that the father’s alcohol consumption was problematic, and the father’s denial (paragraph 14). At paragraphs 16 and 17, the report noted:
Mr Salloum presented as uneasy, unable to make eye contact and eager to criticize the mother. He appeared focused on undermining Ms Salloum and did not appear able to understand the impact of his behaviours on his children.
Ms Salloum presented as upset and distressed when talking about the violence she endured from Mr Salloum and appeared concerned for the children’s safety throughout the interview. In general, she appeared to engage with the conversation well and appeared transparent in her narrative.
In paragraph 19, the report noted:
Ms Salloum was open to the children spending time with their father, if he engaged with support services to address her concerns regarding his alcohol abuse and abusive behaviours. Ms Salloum stated she wanted the children to have a relationship with their father if they would be safe during spend time.
The report noticed that X was polite, friendly and shy. Y presented a cheeky and outgoing boy, who was in prep having repeated two years of kinder. He was unable to be interviewed due to his speech disorder, and the mother reported that he was being assessed for autism spectrum disorder at the time of the interview.
At paragraphs 24-25, the report noted:
X stated that he was scared of his father as he had been “mean” to him in the past. X verbalised that his father did not care about him and that his father used to blame things on him and that on one occasion his father hit him across the face.
X also recalled an incident whereby he accidentally broke something and his father “went to punch me and mum had to stop him”. X stated he did not like when his father lived in his home and preferred his father not being in the home.
At paragraph 26, relevantly, the report continued:
X could not provide any positive memories of his father. It appeared X’s emotional wellbeing had been impacted by his father’s apparent lack of care or compassion.
At paragraphs 28-29:
It appeared Mr Salloum has lacked insight into his past abusive behaviours due to his denial that they had occurred. As such, it would seem unsafe for the children to resume time with their father prior to him gaining insight into how family violence abuse impacts on children.
It appeared that Mr Salloum lacked knowledge of or a connection to the children which resulted in poor parenting practices, such as leaving the children unattended and failing to engage with the children.
The report recommended a number of matters, such as CDT testing, and the father engaged with a psychologist to address how his abusive behaviours might have impacted the children.
At paragraph 35, the report concluded:
Due to the significant and prolonged abuse perpetrated by Mr Salloum against Ms Salloum, the physical abuse towards X and the likely impact on Y that may have contributed to his developmental delays, it would seem most appropriate that Mr Salloum’s time with the children be reserved, until such a time as he can engage with supports to gain insight into, and address, his abusive behaviours.
REPORTS OF C FAMILY SERVICES
The first report dated 13 December 2021 dealt with six periods of supervised time from 18 September 2021 until 11 December 2021.
I do not propose to traverse the report in great detail because its purport is clear from its face. The matters I would take as falling from this report would be as follows:
(a)despite obvious and understandable reservations, the mother did what was required of her to bring the children to the spend time meetings and presented the children as appropriately as she could for them to spend time,
(b)X was totally opposed to spending time with his father from the beginning to the end,
(c)Y warmed to his father after the first meeting and was at times affectionate with him, but this was at all times made more difficult because X did everything he could to disrupt this,
(d)the father was not slow to complain to the supervisor, blaming his ex-wife for the difficulties he was having with the children and in particular, X, notwithstanding that the supervisor made it clear that that was not his role,
(e)on occasions, X was visibly distressed at the spend time, e.g. 2 October 2021, and he was crying,
(f)only on one occasion did X interact with his father in any sort of positive way (16 October 2021),
(g)the father understandably perhaps became increasingly frustrated with the failure of the children to engage, leaving him to speak to the supervisor and complaining about his ex-wife being to blame (e.g. 30 October 2021),
(h)the father on occasions e.g. 30 October 2021 found the matter so overwhelming that he went and sat on a bench seat with his head in his hand not knowing what to do,
(i)time appeared to get progressively worse as the report concludes:
The report noted:
Note: Writer has noticed in the past two visits an escalation in aggression towards Mr Salloum. Y appears now, to be copying his older brother’s behaviour of refusal to engage. Mr Salloum made every attempt today to engage the children without success. Writer is of the opinion Mr Salloum will find it almost impossible to engage the children, without professional interventions.
The second report from C Family Services dated 19 January 2021 reports on two further visits on 8 January 2022 and 15 January 2022.
On 8 January 2022, relevantly the supervisor expressed concern that the father was trying to lead Y into saying something for the writer to hear, and the report noted:
On several occasions Mr Salloum was asking writer to report things that did not happen stating “my lawyer said very important” it appeared he was trying to tell me write down „his wife make boys say and do these things.‟ Writer explained to Mr Salloum he could only write what he heard and facts, not opinion or none facts.
Both children after so many visits are still extremely strong in their refusal to engage their father.
The only engagement writer has witnessed is through the remote-control cars.
It is very concerning that X tried to cut his father‟s back with piece of glass and had also passed a piece of glass to his younger brother. .
On the following visit on 18 January 2022, X in particular sought to injure his father by running a car at him, and Y started doing so as well. Children remained insulting and aggressive. When the children ignored him, Mr Salloum turned to the writer, asking “What can I do? I don’t know what to do.”
On handover, the following is recorded:
Walking toward the car the children walked way in front ignoring their father. While Mr Salloum expressed his feeling to writer. Mr Salloum expressed he felt the situation was hopeless, and never would change while his ex-wife kept telling the children bad stories.
The report concluded:
On several occasions Mr Salloum spoke with Writer asking him to write down these problems were being caused by his ex-wife. Writer explained very strongly that was not possible and not the Writer’s role to make things up.
THE REPORTS OF MR B
Mr B’s first report is dated 20 July 2021. It is annexed to his affidavit filed 1 March 2022. Relevantly, for these purposes, in my opinion, the following assertions are made:
His other son , Y , is aged 6 years of age and Mr Salloum states this child may have Autism Spectrum Disorder.
On the second page, the report continues:
I have gone through the 11f report with Mr Salloum and he disagrees with the matters raised by his "wife". He claims that she is influencing the children to be against him. he denies he drank alcohol to excess during the marriage, he denies any physical violence toward his "wife" and the children , he denies he committed family violence to anyone , and , as such his denial suggests that he will not be suitable for any form of counselling . I note that Mr Salloum has performed two Carbohydrate Deficient Transferrin Tests (CDT on 25 March 2021 and 26 May 2021) and both tests suggest that Mr Salloum has not been abusing alcohol. (Mr Salloum states that at times he did drink alcohol with his friends but his drinking was minimal.) The test results suggest he has not drunk alcohol to excess since January 2021, that is, two months prior to the CDT test.
The report went on:
I suspect that Mr Salloum did drink alcohol at times to excess with his friends but he has stopped drinking now and as he says "Muslims are not allowed to drink alcohol."
The conclusions were:
Mr Salloum does not have a mental health disorder as per the Diagnostic & Statistical Manual (DSM 5). His alcohol abstinence as per the CDT results suggests he is no longer drinking alcohol. Mr Salloum's presentation suggests that he wants to renew his relationship with his two children. I would suggest that the Court consider this with Mr Salloum in a gradual and supervised way (through a Contact Centre) to start and then unsupervised if this is successful.
The follow up report dated 16 January 2022 relevantly asserts:
Mr Salloum’s CDT tests suggest he is not drinking alcohol to excess. He claims he is not drinking alcohol . Mr Salloum continues to lay blame for the lack of meaningful contact with the children on his ex-wife and he kept saying this to me in all our sessions and at the “Contact Centre” with the Supervisor. Given the information to hand , including the behaviour of his eldest son, my professional view is that while he was very supportive and involved with both children in their lives , excessive alcohol consumption was an issue , Family Violence did happen against the mother and his eldest son , not the youngest son. Mr Salloum I believe genuinely believes nothing happened however my view is that he was under the influence of alcohol and had “memory” issues . (Alcohol affects the short-term memory by slowing down how the nerves communicate with each other in a part of the brain called the “hippocampus”. The hippocampus plays a significant role in helping people form and maintain memories . When normal nerve activity slows down short term memory loss can occur.)
The report continued on the second page:
I suspect that Mr Salloum did drink alcohol to excess with his friends but he has stopped drinking now . The sad part is that Mr Salloum wants desperately to have a relationship with his children , like he did prior to his misuse of alcohol (my assumption) . He also wishes to co-parent with his ex-wife . From the information available , Ms Salloum and her eldest son were impacted by Mr Salloum’s aggressive behaviour under the influence of alcohol. Mr Salloum does not drink alcohol anymore and it is clear to me that the Court needs to consider this . I note that Mr Salloum continues to deny drinking alcohol to excess when he was married .
The report went on to conclude that the father does not have a mental health disorder, is no longer drinking alcohol, and wishes to renew his relationship with the children. The report concluded:
The Court considered this with Mr Salloum by offering him in a gradual and supervised way (through a Contact Centre) to start and then unsupervised if this was successful. Unfortunately this approach has not worked . My recommendation is that a competent Family Therapist be sought to assist mother , children and father in developing the appropriate bonds .
THE SUBMISSIONS MADE AT COURT
What follows is taken from my notes.
Counsel for the wife referred to the ages of the children and the fact that X did not want time with the father. He has repeated this to the Independent Children’s Lawyer recently. Despite the orders made in July 2021, there has been no success. In the 11F report, the father denied all wrongdoing and this was unlikely to change. He was blaming the mother. Victoria police records showed that there had been an incident when he hit the mother and her face was swollen. He had seen Mr B seven times and denied violence and excessive consumption of alcohol. These denials mean that he is unsuitable for counselling. Despite seeing Mr B on three further occasions since June 2021, he still does not believe he has committed family violence. The supervision report shows him complaining about the mother. Y has verbal delay and school has reported he does not have an appropriate fear of heights or dangerous objects. The father is unable to deal with this. The best session was in September 2021. Counsel asked rhetorically, “What more professional assistance can the father have?” He had not persevered with D Family Services. There were continuing difficulties with X.
Counsel for the Independent Children’s Lawyer referred to the orders made in July 2021 and the 11F report. She traversed the query in that report as to whether the father could change. The father has undertaken CDT tests and he has not been consuming alcohol to excess, and has undertaken a parenting orders program. Counsel noted the reports from Ms C and noted that in the most recent report from Mr B, it was indicated that the mother and X were affected by the father’s aggressive behaviour. The notation at paragraph 16 of the 11F report that the father had no insight into the effects of his behaviour was consistent with the matters raised by Mr B and the contact centre. The mother’s upset at the 11F report was consistent with family violence and supported by the opinion of Mr B. It is impossible to be confident that the father would change. Y was not interviewed because of his special needs and had not been interviewed by the Independent Children’s Lawyer. The school had confirmed his special needs. The father has no insight and does not really accept the diagnosis. X does not want time and has no curiosity about his father. He said his father hit him for no reason, and he did not even want gifts or presents. The Independent Children’s Lawyer submitted there should be an order for sole parental responsibility to the mother, particularly given the need to make decisions about Y efficiently, given his needs. There should be no order for time with the father. There had been intervention orders in 2015 and 2018 and the father had taken no meaningful steps since July to access therapy with D Family Services but rather continued to blame the mother.
In submissions on behalf of the father, Counsel commenced by referring to section 60B of the Act. The children have a right to a meaningful relationship with their father. There has been no expert evidence about the effects that a no time order might produce on the children. Supervised time only commenced in August 2021 after a very long break. The parties should go through the therapeutic process. There was some affection expressed by Y despite X’s efforts. They had not seen him for three years. There should be no family therapy for the older child given the views as expressed. Possibly, there might be a child psychologist involved. The father had undertaken CDT tests and had done the courses required of him. He did contact D Family Services but there were no suitable programs. They were on a waiting list in any event. Family therapy would be more readily available. There was no evidence about the negative matters alleged against the father, and the evidence remained untested. It would not be appropriate to dismiss the application.
CONSIDERATION
Any excision of a parent from seeing children whom they love is obviously a desperately unhappy and very serious matter. Counsel for the father is correct to point to section 60B of the Act in this regard, but that submission ignores section 60B(1)(b) which asserts one of the objects of the Act as being “protecting children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence”.
Pursuant to section 60CC(2A), the court is required to give greater weight to the need to protect children than to the benefit of having a meaningful relationship with both of their parents.
As French CJ and Gummow JJ observed in Spencer, it requires the court to make a practical judgment as to whether the applicant has more than a fanciful prospect of success.
Here, whatever matters might be thought to still be in dispute, a matter to which I shall return, the following matters are completely uncontroversial.
(a)The father completely denies any violence against the mother and the children.
(b)The father takes no responsibility whatever for the attitude that the children have now developed towards him.
(c)Conversely, he blames the mother entirely for brainwashing the children.
(d)The children have displayed what, to my way of thinking, are deeply concerning antipathy to their father. This is particularly concentrated in the elder child X and this circumstance is entirely consistent with the proposition that only X was ever actually assaulted.
(e)X clearly believes he was assaulted by the father, because he has told this to the 11F reporter and to the Independent Children’s Lawyer.
(f)Contemporaneous police reports make the father’s blanket denial extremely improbable.
(g)The 11F report writer, a professional experienced in the field, found the mother’s presentation to be entirely consistent with her assertions.
The father’s position starts from what is clearly an immutable mindset (in his most recent affidavit, his solicitors were able to coax a very partial possible admission by the father as to his contribution to the current state of affairs, but this runs completely contrary to what he was telling C Family Services as recently as January, and I do not accept that it qualifies the overarching position). The father, in effect, wants the mother to obtain counselling to, in effect, get out of the erroneous and, as he would have it, fabricating mindset that she has. His application is really pressed only in respect of Y, in respect of whose disability he appears to have some doubt.
The father’s proposal takes no account of the very probable reaction of X to his brother spending time with the father on his own, even in therapy, let alone should therapy produce the result where it is felt appropriate for time to progress.
It is important to remember that pursuant to section 65AAA of the Act, the welfare of the children is the paramount consideration. Given the father’s underlying and complete incapacity to confront the nature of his own conduct, something that Mr B surmises may arise from the degree of his alcohol abuse at the time he was abusing the mother and child, there can be really no serious hope that therapy will ever produce the result he wishes. Indeed, when one reads the reports of the supervised time in detail, it is clear that while the father was able at least at one meeting to engender a good reaction from Y and at least an incipient reaction from X, by the latter stages, the only thing that was producing any kind of interaction was playing with the motorised cars which both children ended up aiming at the father with a view of hitting him. In the face of these matters, in my view, the father has no reasonable prospects of successfully prosecuting his case within the meaning of section 45A, as explained by the High Court in Spencer.
It is not in any sense an attractive thing to make orders of the sort that the court is contemplating. Counsel for the father’s submission that there is no evidence as to the likely effects of the excision of the father is of course entirely correct. Nonetheless, I am prepared to assume in his favour that at least at some level, having no contact with their father will be a significant deficiency in the children’s lives. Social science often quoted in the court supports this proposition, which in any event is only consistent with ordinary human experience. Nonetheless, the other competing considerations which I have set out, I hope, in sufficient detail weigh very heavily against the application he wishes to press. The only order the court can properly make in the children’s best interests is that the application be summarily dismissed.
In saying this, I should perhaps repeat, unless it is not clear, the father’s total an adamantine denial of all misconduct on his part has of course not been tested in full or indeed at all in cross-examination of the relevant two primary witnesses. Nonetheless, in the face of the materials already before the court in the form of 11F report, Mr B’s reports and the police material, in my view, the father’s chances of establishing that nothing whatever occurred would indeed, as the High Court said in Spencer, be fanciful, or as Justice Gordon put in Jefferson Ford, merely plausible rather than reasonable.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 15 March 2022